Malawi Supreme Court upholds 50 +1 constitutes majority vote not first-past-the-post

The seven-judge panel of the Malawi Supreme Court of Appeal has ruled that the interpretation on what the majority means in the presidential elections is  50 +1 as  truly representative of the will of the people.

The seven-member judges’ panel of Justice of Appeal (JA) including Lovemore Chikopa, JAs Edward Twea, Anaclet Chipeta, Anthony Kamanga, Frank Kapanda and Rezine Mzikamanda said the matter appeared up for consideration in the lower court.

The court said there is no doubt that the issue of the meaning of majority was under question in the court proceedings but the parties failed to address the matter, gave scanty regard, when the court asked them to discuss the issue.

“It is important issue that raises the issue of legitimacy at presidency level,” said Justice Renzine Mzikamanda in reading the ruling.

Section 80 (2) of the constitution provides that the  President shall be elected “by majority of the elections through direct, universal and equal suffrage.”

“We hold this [50 +1] is the correct meaning of the majority. It will guard against manipulation of votes,” he added.

“It would be absurd that a presidential candidate who amasses 10 percent of the votes would be regarded as a majority vote.”

The MEC declared Mutharika the narrow winner of the May 2019  election with 38% of the vote, followed by Lazarus Chakwera with 35% and Saulos Chilima with 20%.

The Constitutional Court ruled that its interpretation of the section 80 (2) of the Constitution the word majority means 50+1 of the votes at the polls not the first-past-the-post.

Justice Mzikamanda said such interpretation safeguards principles of transparency, honesty and integrity.

In their judgement, the ConCourt judges comprising Healey Potani, Dingiswayo Madise, Ivy Kamanga, Redson Kapindu and Mike Tembo unanimously ruled that President Peter Mutharika was not duly elected in May 2019  because there were irregularities and he did not attain the majority vote.

However the Supreme Court expressed sharp disapproval of the Constitutional Court in making their declarations of the meaning of the majority:.

‘‘The court below should not have chastised the Supreme Court in the manner it did when determining the meaning of the majority.”

The Supreme Court – the final arbiter in the matter, nonetheless said: “We are in no doubt that the correct meaning of majority is  50 +1 and we depart from the Gwanda Chakuamba case. We will not allow thr absurdity of the meaning of majority affect the democratic will of the people.”

The ConCourt subsequently ordered a fresh election within 150 days of its judgement and directed Parliament to make some legislative provisions that would support the 50+1 constitutional provision.

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